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Sushi chef loses harassment claim after objecting to being sent work rota after midnight

Makbool Javaid, Partner - Simons Muirhead & Burton

In Mr S Mainali v New Godalming Sushi Ltd Hemanta Mainali, a sushi chef based at Waitrose, was furious after being woken up in the early hours of a Saturday morning after his boss WhatsApped him the staff rota after midnight., an employment tribunal heard.

He told majority shareholder Sumin Lohani it was ‘very wrong’ to bother him at that time of night, replying to the message ‘Go f*** yourself’.

Mr Mainali claimed that the message had been sent directly to him – not to a group chat – and was a ‘deliberate attempt to disturb him’ and even ‘encourage him to leave’.

The tribunal heard that his relationship with Mr Lohani deteriorated so badly that a fortnight later, the pair ended up having a violent confrontation in public at the sushi counter of the upmarket supermarket.

He ended up leaving the business and sued his former partner claiming he had been forced out as part of a deliberate campaign.

However, his case has been thrown out after a judge ruled that Mr Lohani had not meant to disturb him on purpose by sending the message after midnight.

The tribunal heard: ‘On 4 January 2020, at about 00:29, Mr Lohani sent out the rota for the following week. He sent it to the employees of (the company) who would be working at the kiosk that week, including [Mr Mainali].

‘He sent it via WhatsApp. He did not send it to [Mr Mainali] only. He did not choose the time of sending to annoy [Mr Mainali] or anyone else.

‘He had thought that people would read the message when convenient to them and had not expected them to read/respond straight away (and no response was necessarily required, unless there was a problem working the specified shifts).

‘[Mr Mainali’s] phone made a sound when this message was received. That had not been Mr Lohani’s intention; he had simply given no thought to that possibility. [Mr Mainali] and his family were asleep and were disturbed by the phone alert.’

Mr Mainali said he had been discriminated against due to ‘mental health issues which include anxiety, insomnia and panic attacks’, and claimed he had been ‘bullied and verbally abused in front of staff’.

However, his complaints of harassment and disability discrimination were dismissed.

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